Published: Thursday, May 2, 2013 at 2:35 p.m.

Last Modified: Thursday, May 2, 2013 at 2:35 p.m.

TALLAHASSEE - Police officers need a warrant if they want to search through photos on a cellphone in possession of a defendant at the time of arrest, the Florida Supreme Court ruled on Thursday.

The ruling, which overturns an opinion from the 1st District Court of Appeal, also is related to an issue before the Legislature, which this session has considered putting the warrant requirement in statute.

While police officers in Jacksonville had the right to take the defendant's cell phone, they should have gotten a warrant to look at the photos on the device, the Supreme Court ruled in a 5-2 decision. Justices R. Fred Lewis, Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry were in the majority. Justice Charles Canady and Chief Justice Ricky Polston dissented.

The district appeals court had ruled that the cell phone search was legal but asked the state's high court to take the issue, calling it a matter of great importance that should get a statewide ruling.

The ruling came in the case of Cedric Smallwood, who was arrested in connection with a convenience store robbery in 2008. Officer Ike Brown had taken Smallwood's phone, and a year later as the case was about to go to trial, he notified prosecutors that he had looked through photos on the phone and there were some that prosecutors might want to see. The prosecutor notified the defense and then sought a warrant.

The photos were of a gun and stacks of money.

Even though prosecutors sought a warrant, the defense argued the initial search of the phone was illegal. The defense argued people have an expectation of privacy in their smart phones, which are essentially small computers that fall within a "constitutional zone of privacy."

The state contended the search was OK - noting that if the pictures had been printed photos in Smallwood's wallet, previous court rulings have held there would be no problem with looking through them. During trial, Brown said it's not unusual for criminals to document what they've done with photos, and that's one of the reasons he looked on the phone.

Smallwood was convicted of robbery and sentenced to 50 years.

Smallwood lost on appeal to the 1st DCA, which relied on a U.S. Supreme Court decision called United States v. Robinson in finding that police have broad ability to search personal items found on arrestees without a warrant.

"The (U.S.) Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee?s immediate control may be searched and inspected upon arrest," the appeals court said. There's no reason to except cell phones, the 1st DCA said.

But Justice Lewis, writing for the Supreme Court's majority, said a cigarette pack containing drugs that was the focus of the Robinson case was very different from a modern smart phone.

"That case clearly did not involve the search of a modern electronic device and the extensive information and data held in a cell phone," Lewis wrote. "When Robinson was decided, hand-held portable electronic devices in the form of cell phones containing information and data were not in common and broad use.

"Further, in recent years, the capabilities of these small electronic devices have expanded to the extent that most types are now interactive, computer-like devices," Lewis continued. "Vast amounts of private, personal information can be stored and accessed in or through these small electronic devices, including not just phone numbers and call history, but also photos, videos, bank records, medical information, daily planners, and even correspondence between individuals through applications such as Facebook and Twitter."

He cited a federal court opinion that noted that computer searches can't be treated the same as searches of someone's pocket because computers contain so much personal information. And, he noted, phones are computers now.

"Thus, we agree and conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices," Lewis continued.

The Supreme Court said Officer Brown had a right to take Smallwood's phone, but since there was no possibility that he could use information on it as a weapon and no need prevent the destruction of the evidence, the officer needed a warrant to further search the device.

"We refuse to authorize government intrusion into the most private and personal details of an arrestee?s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one?s person," Lewis wrote.

Canady, in dissent, noted that police didn't use the phone to access any significantly personal information, and said the majority's opinion "would transform the traditional understanding of the right of the police to inspect items found on the person of an arrestee."

The Legislature this year considered legislation (HB 797, SB 846) that would make photos and other data on cell phones not subject to search after an arrest in exactly the situation involved in the Smallwood case. Both of those bills remain in committee with less than two days left in the legislative session.

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